AJABLAL RAI Vs. EMPEROR

JUDGEMENT

(1.) This petition has come before us on a reference by Macpherson, J., as he considered that a decision by a Division Bench was necessary on the question of law arising in the case. Of the seven petitioners, petitioner 1, Ajablal Rai has been convicted under S.224, Indian Penal Code, on a charge of escaping from lawful custody. Petitioners 2 to 7 were convicted under Section 225, Indian Penal Code, on a charge of having rescued petitioner Ajablal Rai from lawful custody as well as under Section 147 of rioting with the common object of rescuing him from lawful custody. All the petitioners were sentenced to six months rigorous imprisonment under Sections 224 and 225, but no separate sentence was passed under Section 147. The question that comes before us for decision is whether the joint trial of the petitioners, viz., of Ajablal Rai under Section 224 and the other petitioners under Secs.225 and 147 is legal.

(2.) The case for the prosecution was that Ajablal Rai, a proclaimed offender was arrested by dafadar Ajablal Dusadh on 19 January 1935. He was arrested outside the shop of one Madho Sahu at mauza Parmanandpur and soon after the arrest, the other six petitioners slapped and assaulted the dafadar and his party, which consisted of chaukidars including Baudhu chaukidar, Bhikho chaukidar and Basant Chaukidar, and thereby effected his escape from lawful custody. The escape was effected after the petitioner Ajablal Rai had been taken a few laggas off by the dafadar and chaukidars in spite of his resistance to proceed to the thana. The charge framed against petitioner Ajablal Rai was as follows: That you, on or about 19 January 1935 at Sensarpur, P.S. Khagaria, escaped from the custody of Ajablal Dafadar in which you were lawfully detained for the offence of murder under Section 302, I.P.C., and thereby committed an offence punishable under Section 224, Indian Penal Code.

(3.) The charges against the other petitioners were as follows: First.--That you, on or about 19 January 1935 at Sansarpur, P.S. Khagaria, were members of an unlawful assembly, and did, in prosecution of the common object of which, viz., to forcibly rescue prisoner Ajablal Rai from the lawful custody of the chaukidars and dafadar commit rioting, an offence punishable under Section 147, Indian Penal Code, and Secondly--That you on or about the same day of January 1935 at the same place intentionally offered resistance to the lawful apprehension of Ajablal Rai for the offence of murder under Section 302, I.P.C., and rescued the said Ajablal Rai from the custody of Ajablal Dafadar and thereby committed an offence punishable under Section 225, Indian Penal Code.